Introduction to the Law of Searches

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Introduction to the Law of Searches
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4th Amendment

• People have the right to be secure in their
  houses, papers, and effects.
• No unreasonable search and seizures.
• Applicable to the States through the Due Process
  clause in the 14th Amendment.
• Generally only applies to governmental conduct.

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The Means to Search

• Search Warrant issued by a neutral and detached
  magistrate/judge.
• Based on probable cause.
• Has to be fresh.
• Valid on its face.

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Execution of the Warrant

• After being issued
• Executed without unreasonable delay.
• After announcement (unless officers/evidence
  would be endangered.)
• Person/Place seized within scope of warrant.

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Execution Cont.

• 10 day rule
• Normally done in the daytime.
• Special exception for search warrant during later
  hours.
• Inventory.
• High-Dollar/Special Items.

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Exceptions to the Search Warrant Requirement

• Incident to Lawful Arrest.
• Automobile Search
• Plain View
• Consent
• Stop Frisk
• Hot Pursuit
• Protective Sweep

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What Agents are allowed to Seize

• Instrumentalities of the crime.
• Fruits of the crime.
• Contraband.
• The mere evidence of a crime (e.g. blood stained
  clothing, bloody knife, etc)

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What is Constitutionally Protected?

• Police record conversation inside a home.
• Police record a conversation in a public
  telephone booth.
• Police record a conversation in a persons car.
• Police record a conversation in a restaurant.
• Police record a conversation in a mall.

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People are Protected, Not Places

• Person must have a reasonable expectation of
  privacy, and
• that the expectation be one that society as a
  whole recognizes as reasonable.

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Katz v. U.S. (1967)

• Originally 4th Amendment dealt with property.
• Katz made it more of a privacy issue.
• It is a search where a person has a reasonable
  justifiable expectation of privacy.
• What a person knowingly exposes is not a subject
  of 4th Amendment protection.

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Scenario 1

• Mr. Rip Off is sitting in his home creating false
  investment statements.
• Police are in the house across the street.
• Using a high-powered telescope, the police see
  Rip Off using white-out to change investment
  returns.
• Police use this information to get a search
  warrant.
• Will the evidence from the resulting search
  warrant be suppressed?

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Scenario 2

• Police do surveillance of Herb Grower from across
  the street.
• Police use a telescopic photo lens to see through
  the open window of Grower.
• Police see fifteen marijuana plants and use this
  as a basis for their search warrant.
• Does the evidence from the resulting search
  warrant get suppressed?

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What is Reasonable/Unreasonable?

• Objects in plain view.
• Objects in plain view readable only through
  enhancement.
• Objects seen through open windows.
• Would a reasonable person have an expectation of
  privacy?

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Plain View and Natural Senses

• Pat down searches of a person reveals a weapon.
• Officer smells marijuana.
• Officers sees contraband in plain view.

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Scenario 3

• After receiving an anonymous tip, officers board
  a public bus and find an individual who is
  allegedly a courier for cocaine.
• The individual identifies his duffel bag.
• Officers feel all around the outside of the bag.
• When they feel a hard substance, they open the
  bag to find 2 kilos of cocaine.
• Is this evidence admissible?

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Plain Touch

• Plain touch is not analogous to plain view.
• Touching or seizing something can be more
  intrusive than plain view.
• The Plain View Doctrine authorizes seizure of
  items visible to the officer only if the
  officers access to the evidence has a 4th
  amendment justification.
• Depends on the expectation of privacy.

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Scenario 4

• After receiving an anonymous tip, officers board
  a public bus and find an individual who is
  allegedly a courier for cocaine.
• The individual identifies his duffel bag.
• The officers call a drug dog to the scene.
• The dog hits on the bag and a subsequent search
  reveals two kilos of cocaine.
• Why is this evidence admissible?

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How Probable Cause was Obtained

• There was no intrusive search of the bag.
• Dogs, drug-testing kits only verify the presence
  of an illegal substance.
• After the hit by the dog, enough probable cause
  was present to make a valid search/seizure.

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Scenario 5

• Mr. Jewel Thief pulls a heist the previous night.
• Thief checks out of his hotel and leaves behind a
  blueprint of the jewelry store.
• Police search the hotel room without a warrant
  and find the blueprint.
• Will this evidence be suppressed?

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Abandoned Property

• Again, ask yourself is there a reasonable
  expectation of privacy.
• Not based on formal property rights.
• What if a house is for sale and an officer gains
  entry with a realtor?

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Scenario 9

• Wile E. Coyote is a fugitive felon.
• Police see Coyotes car parked in his brothers
  driveway.
• The car does not move for two weeks.
• Police search the vehicle under the abandonment
  principle and find evidence to support the
  charges.
• Will this evidence be suppressed?

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Look at the Situation

• Where is the car placed?
• How long has the vehicle been there?
• What if police had walked onto the driveway and
  saw contraband through the window?

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Scenario

• Police respond to a domestic violence call.
• The owners of the home voluntarily allow police
  into the home.
• Police are given consent to search the house.
• While searching a boarders room, police find
  four stolen guns.
• Will the stolen guns be suppressed in the case
  against the boarder?

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Standing

• Person owned or had a right to possession of the
  place searched.
• Place searched was the persons home.
• Person was an overnight guest of the place
  searched.
• What if the boarders wallet left in the kitchen
  contained false identification?

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Items Held Out To The Public

• Generally no reasonable expectation of privacy.
• Garbage at the curb
• Handwriting
• Bank Records
• Telephone Records
• Paint on the outside of a car.
• Sound of a voice.

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Scenario 6

• Officers position themselves outside Tony
  Sopranos front door and back lanai.
• Officers near the front door hear Soprano admit
  to killing an associate.
• Ten minutes later, officers in the back lanai
  hear Soprano confess to stealing a
  tractor-trailer.
• Which, if any, of these statements is admissible
  evidence?

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Curtilage vs. Open Fields

• Open Fields Doctrine
• Areas Outside Curtilage
• Much less expectation of privacy in open fields.

• Areas around the persons home
• Can include some or all outbuildings such as
  garages and barns.
• More of an expectation of privacy with curtilage.

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Four Points to Outbuildings

• Proximity of the area to the home.
• Whether the area is included within an enclosure
  surrounding the home.
• The nature of the uses to the area.
• Steps taken to protect the area from observation.

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Scenario

• Police fly a helicopter in navigable airspace
  over Eric Cartmans home.
• Police observe marijuana plants even though
  Cartman had a makeshift roof over the area in
  question.
• The area is in space considered part of
  curtilage.
• Will this evidence be suppressed?

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Scenario 7

• Police suspect Smokey Weed of having a marijuana
  grow operation in his home.
• Police fly a plane over the home and use a
  thermal imager, which does not send rays into the
  home, to determine amounts of heat emanating from
  the home.
• Based on the results, the police obtain a search
  warrant.
• Is this evidence admissible?

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Kylle v. U.S. (2001)

• Reliance upon sense-enhancing devices.
• More particularized version of the Katz test.
• Information regarding the interior of the home
  which is not readily recognizable
• Is the technology in question in general public
  use?

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Scenario 8

• Police are investigating Chemical Dump, Inc. for
  environmental crimes.
• Police use an aircraft and take pictures of
  Chemical Dump, Inc.s fenced-in facility.
• Police also take pictures from a public road
  showing the illegal packaging of chemicals
  through an open door in the factory.
• Undercover police go into the sales office and
  find falsified paperwork in the trash can.
• Which items are admissible if any?

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Totality of the Circumstances

• Each search stands on its own
• Look at the technique used.
• While some actions may constitute a search if
  done one way, they may not be considered a search
  if done another way.

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Scenario

• Police obtain a valid search warrant for the home
  of Sam Bookie, 1235 Vegas Lane.
• The warrant is based on information from an
  informant.
• Police delineate 1234 Vegas Lane as the place to
  be searched.
• Realizing their mistake, police scratch out 1234
  and put 1235 in its place.
• After the search warrant police find out the
  informant lied to them.
• Will this evidence be suppressed and why?

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Tainted Evidence

• Was the mistake made in good faith?
• Does the mistake have an impact on the Search
  itself?
• Were there exigent circumstances?
• Totality of the Circumstances.

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Review

• 4th Amendment applies to people more than
  property.
• A search warrant based on probable cause is
  needed to search.
• There are exceptions.

• Was there a reasonable expectation of privacy?
• Items held out to the public have no expectation
  of privacy.
• Curtilage and the Open Fields Doctrine.

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Dr. Pacini Video - Outside Curtilage